Electrical Workers Ibew Local 3 (Burroughs Corp.)

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 1099 (N.L.R.B. 1986)

ELECTRICAL WORKERS IBEW LOCAL 3 (BURROUGHS CORP.)
Local Union No. 3, International Brotherhood of
Electrical Workers, AFL-CIO and Burroughs
Corporation . Case 22-CB-5394
30 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 27 May 1986 Administrative Law Judge
Howard Edelman issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Local Union No. 3, International Broth-
erhood of Electrical Workers, AFL-CIO , Flush-
ing, New York, its officers , agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following as paragraph 1.
"1. Cease and desist from threatening to strike
Burroughs Corporation, where an object of such
strike is to force or require Burroughs to terminate
its collective-bargaining agreement with the Re-
spondent unless the Respondent complies with the
requirements of Section 8(d) of the Act."
2. Substitute the attached notice for that of the
administrative law judge.
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951)
We have carefully examined the record and find no basis for reversing
the findings.
2 We find that the Respondent's threat to strike in order to force the
Employer to negotiate a new agreement after the parties' existing con-
tract had been automatically renewed was not only in derogation of the
automatic renewal clause but constituted a repudiation of the contract.
This conduct is analogous to unlawful union pressure to force employers
who are members of multiemployer associations to abandon existing labor
agreements See Electrical Workers IBEW Local 1186 (Pacific Electrical),
264 NLRB 712 fn 3 (1982); Plumbers Local 420 (Paragon Mechanical),
254 NLRB 445 ( 1981). For these reasons we agree with the judge that
the Respondent acted in derogation of Sec. 8(d) and violated Sec. 8(b)(3).
APPENDIX
1099
NOTICE To MEMBERS
'POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has, ordered us to post and abide by this notice.
WE WILL NOT threaten to strike Burroughs Cor- '
poration, where an object of such strike is to force
or require' Burroughs to terminate its collective-
bargaining agreement with us, unless we comply
with the requirements of Section 8(d) of the Act.
LOCAL UNION No. 3, INTERNATION-
AL BROTHERHOOD OF ELECTRICAL
WORKERS , AFL-CIO
Marguerite R. Greenfield, Esq., for the General Counsel.
Norman Rothfeld, Esq., for the AFL-CIO.
Joseph D. Lukoch, Esq. (Epstein, Becker, Bossody &
Green), for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This
case was tried before me on December 16, 1985, at
Newark, New Jersey.
On October 24 and November 18, 1985, Burroughs
Corporation (Burroughs) filed a charge and an amended
charge, respectively against Local 3, International Broth-
erhood of Electrical Workers, AFL-CIO (Respondent)
alleging certain violations of the National Labor Rela-
tions Act. On November 21, 1985, a complaint issued al-
leging that Respondent had threatened to strike Bur-
roughs in violation of Section 8(b)(3) and 8(d) of the
Act.
Briefs were filed by Counsel for the General Counsel
and counsel for Respondent. On my consideration`of the
entire record, the briefs, and my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
Burroughs is a corporation engaged in the design,
manufacture, sale, and servicing of computers and other
electrical office equipment. It has offices and facilities
throughout the United States and sells its products
throughout the world.'
Counsel for Respondent contends the complaint
should be dismissed for lack of jurisdiction or reopened
i With respect to commerce the General Counsel alleged only that
Burroughs "performed services valued in excess of $50,000 in states other
than the State of New Jersey." This allegation was admitted Respondent
did not stipulate that Burroughs was engaged in interstate commerce and
it denied that this proceeding affects commerce No commerce testimony
was taken.
281 NLRB No. 147
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to take commerce testimony. I take judicial notice that
Burroughs meets the Board 's nonretail standard and is an
employer engaged in commerce within the meaning of
the Act.
I also find that Respondent is a labor organization
within the meaning of the Act.
Since 1974, Burroughs has had a series of collective-
bargaining agreements with Respondent , covering a unit
of field engineers operating out of three branch offices
located in New Jersey, Manhattan, and Long Island,
New York. These field engineers service the Burroughs
equipment sold or leased to customers in the New York-
New Jersey area.
Each collective-bargaining agreement has been a 2-
year agreement. The last agreement, which is in issue,
was entered into on October 31, 1983, and expired on
November 1, 1985, subject to an automatic renewal
clause, which provided in relevant part as follows:
ARTICLE XXXXI
DURATION
The Agreement shall remain in full force and effect
up to and including November 1, 1985, and thereaf-
ter from year to year except as hereinafter provid-
ed.
Sixty (60) days prior to November 1, 1985, or any
subsequent annual expiration date either party may
notify the other party in writing of its desire to ne-
gotiate a new agreement.
For at least the past three agreements, excluding the
1983-1985 agreement, Respondent gave timely notice to
Burroughs of its intent to negotiate a new agreement.
Timely notice in 1985 would have to have been received
by September 2, 1985 . It is undisputed that no notice was
sent or received by either party to the agreement by this
date.
On September 20, 1985, Burroughs advised Respond-
ent, in writing, that the collective-bagaining agreement
had been automatically renewed until November 1, 1986,
because of Respondent's failure to give timely notice.
However, Burroughs offered to meet with Respondent
for the limited purpose of presenting a plan to improve
wages, provided that Respondent understood that Bur-
roughs was not waiving its contractual right to timely
notice of termination of the agreement, or the automatic
extension of the contract to November 1, 1986.
By letter dated September 23, 1985, John Crowley,
Respondent's business representative , informed Bur-
roughs of its intention to terminate the collective-bar-
gaining agreement effective November 1, and proposing
negotiations. This letter was received by Burroughs on
September 25 or 26. Respondent also sent appropriate
notices to the Federal Mediation and Conciliation Serv-
ice and to the State Mediation Board on September 22.
On October 10, 1985, Crowley met with Burroughs'
representatives concerning a contractual grievance.
During this meeting, Crowley brought up the subject of
the 1983-1985 agreement. According to the credible tes-
timony of James Fitzgerald, director of employee rela-
neering at Burroughs' Manhattan branch, Crowley told
them that the Union had been untimely in filing its notice
of intent to terminate the 1983-1985 agreement. Howev-
er, as a result of a legal loophole he had found , it was his
position that the Union's September 23 letter, described
above, had the effect of extending the contract' termina-
tion date to November 25, and if no agreement was
reached by this date the Union could strike.
Fitzgerald asked Crowley if he intended to respond to
Burroughs' September 20 letter offering to present a
wage improvement plan. Crowley replied that the Union
was only interested in negotiations , not in receiving
something from the Employer and repeated that they felt
they could strike on November 25. Fitzgerald replied
that he hoped this would not happen and that if it did
the employees would be subject to discipline and possi-
bly discharge. Crowley rose from his chair and an-
nounced "so be it." Fitzgerald concluded that Respond-
ent intended to strike on November 25. Crowley denied
this conversation.
I credit the testimony of Fitzgerald and Zeller. I was
impressed with their demeanor. Moreover, they were
mutually corroborative. I was unimpressed with the de-
meanor of Crowley. He was evasive and contradictory
throughout his testimony. For example, at one point in
his testimony he specifically testified that during the
meeting of the unit members held on October 12, de-
scribed below, when a strike authorization vote was
taken, he told the employees that the Union was of the
opinion that the 1985 agreement expired on November
25, and that if no agreement was reached, the Union
could strike. He then testified that at this point, October
12, a strike on November 25 was actively considered as a
union option.2 Subsequently, he directly contradicted all
this testimony.3
On October 12, Crowley testified that a meeting of the
Burroughs' unit employees took place. During this meet-
ing, Crowley told the employees that the Union took the
position that by its September 23 letter to Burroughs
they had successfully extended the expiration date of the
1985 contract to November 25, and that thereafter they
had the right to strike if a new contract had not been
agreed on. In furtherance of Respondent's position, the
unit members voted to authorize the negotiation commit-
tee authority to call a strike if necessary.
Following the October 10 grievance meeting, and
based on Crowley's statements to Fitzgerald and Zeller,
described above, Burroughs began to prepare for a
strike. It retained New York counsel and identified
hotels, auto rental, and security firms for use during the
strike.
Burroughs' New York counsel, Joseph Luksch, credi-
bly testified that on October 25, in a telephone conversa-
tion with Respondent counsel, Norman Rothfeld, con-
cerning the instant charge, Luksch advised Rothfeld that
he believed there was enough evidence to establish the
8(b)(3) allegation. Rothfeld replied that he did not con-
trol the members and there would in fact be a strike on
2 Tr 90.
tions, and Joseph Zeller, a branch manager for field engi- 3 Tr. 102, 103, 113, 114, and 123.
ELECTRICAL WORKERS IBEW LOCAL 3 (BURROUGHS CORP.) 1101
November 25. Luksch answered that that would be a
classic 8(b)(3) violation . Rothfeld concluded saying, "so
be it." Rothfeld did not testify to deny the conversation.
By letter dated November 13, Respondent sent Bur-
roughs a list of contract proposals . About November 18,
the Federal Mediation called Fitzgerald and set up a
meeting for November 22.
On November 22, the parties met. Fitzgerald credibly
testified that the mediator opened the meeting asking,
"How are we going to avoid a strike?" Crowley replied,
"We're not if in fact the company 's not willing to negoti-
ate." The mediator asked Crowley why he was so intent
on striking at this time . Crowley replied that the contract
would terminate on November 25, and that if Burroughs
was not prepared to negotiate then they would in fact
strike . Fitzgerald pointed out that the Board was at that
very moment in Federal court seeking a temporary re-
straining order . Fitzgerald then proposed that the parties
enter into discussions regarding revising the labor agree-
ment, yet agreeing that neither side would waive its legal
position . The parties thereafter entered into a written
agreement to that effect . As the parties were preparing
to leave, Fitzgerald asked Crowley when the strike had
been scheduled to take place , Sunday midnight or
Monday midnight . Crowley countered, asking what Fitz-
gerald thought . Fitzgerald answered that the Company
had heard rumors of both and that they had been pre-
pared for a Monday strike . Crowley smiled and replied
"it would have taken place Tuesday, then."
Crowley denied the above statements concerning Re-
spondent's intention to strike.
Based on my favorable impression as to Fitzgerald's
credibility and my unfavorable impression as to Crow-
ley's credibility, I credit Fitzgerald 's testimony.
It is clear that the 1985 agreement between the parties
contained a provision that provided for automatic renew-
al unless the party desiring termination submitted a writ-
ten notice of such desire , at least 60 days prior to the ex-
piration of such agreement . In this case there is no dis-
pute that Respondent 's letter dated September 23 was
untimely . Nor is there any evidence of any extenuating
circumstances, which would excuse such untimely
notice . Moreover, prior to Respondent 's untimely notice,
Burroughs, by its letter of September 20, advised Re-
spondent that because of its failure to give timely notice,
the agreement had been automatically renewed for a 1-
year period as provided by the agreement . Under these
circumstances, there is no doubt that the agreement was
effectively renewed for such 1 -year period . Abbot House,
Inc., 272 NLRB 78 (1984); Taft Broadcasting Co., 264
NLRB 185 (1982). Moreover , Burroughs ' willingness to
discuss wages, as set forth in its September 20 letter does
not constitute a waiver of such automatic renewal. An-
chorage Laundry & Dry Cleaning, 216 NLRB 114 (1975).
The evidence is conclusive that Respondent threatened
Burroughs with a strike if no agreement was reached on
November 25. Such threats were made to Burroughs' of-
ficials Fitzgerald and Zeller by Crowley during the Oc-
tober 10 meeting , when Crowley told Fitzgerald and
Zeller that if no agreement was reached by November
25, Respondent could strike . The threat was repeated by
Respondent 's attorney , Rothfeld, in a telephone conver-
sation with Burroughs ' attorney, Luksch, on October 25
when Rothfeld told Luksch that Rothfeld did not con-
trol Respondent 's members and that there would in fact
be a strike on November 25. The Board has consistently
held that statements by counsel in the course of their
representational duties are attributable to the client as an
admission against interest . Florida Steel Corp., 235 NLRB
1010, 1012 (1978); Steve Aloi Ford, 179 NLRB 229 fn. 2
(1969). The threat was repeated a third time on Novem-
ber 22 by Crowley to Fitzgerald , when the Federal me-
diator asked Crowley how a strike could be avoided and
Crowley replied it could not, if Burroughs was not will-
ing to negotiate . That Respondent made such threat and
intended to carry it out is further evidenced by Respond-
ent's October 12 meeting with its members , wherein
Crowley expressed Respondent 's position that it could
strike if no agreement was reached on November 25, and
conducted a successful vote to obtain strike authoriza-
tion.
A threat to strike during an automatic extension period
violates Section 8(b)(3) and 8(d) of the Act. Electrical
Workers IBEW Local 1186, 264 NLRB 712 fn. 3 (1982).
Accordingly, I conclude that Respondent , by threaten-
ing Burroughs with a strike during a period when the
then existing collective-bargaining agreement was ex-
tended , violated Section 8(b)(3) and 8(d) of the Act.
CONCLUSIONS OF LAW
1. Burroughs is, and has been at all times material, an
employer engaged in commerce within the meaning of
the Act.
2. Respondent is a labor organization within the mean-
ing of the Act.
3. At all times since 1974, Respondent has been the ex-
clusive collective-bargaining representative for the fol-
lowing unit, which is an appropriate unit within the
meaning of the Act:
All Burroughs employees as certified by the Nation-
al Labor Relations Board in Case 2-RC-16463, em-
ployed by the Company who perform service
and/or installation work in data centers, banks, fi-
nancial brokerage houses, home office insurance
companies, savings and loan institutions, clearing
houses and federal reserve banks located in the bor-
oughs of Bronx , Brooklyn, Manhattan , Staten Island
and Queens in the City of New York, in the coun-
ties of Nassau, Rockland , Suffolk and Westchester
in the State of New York, in the counties of
Bergen , Essex, Hudson , Middlesex , Morris, Passaic,
Somerset, Sussex and Union in the State of New
Jersey, but excluding office employees, clerical em-
ployees, sales representatives , sales technical person-
nel, all other employees , watchmen, guards and su-
pervisors as defined in the Act.
4. About October 31, 1983, Respondent and Burroughs
entered into a collective-bargaining agreement concern-
ing the employees in the unit described above, which
was to remain in effect until November 1, 1985, and
thereafter from year to year, unless either party served a
notice on the other party of its desire to terminate or
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
modify the agreement 60 days prior to the expiration
date.
5. About November 1, 1985, the collective-bargaining
agreement described above was automatically renewed
by its terms until November 1, 1986, as neither party
served a notice on the other of a desire to terminate or
modify the agreement 60 days prior to its expiration.
6. On various dates in October and November 1985,
described above, Respondent threatened Burroughs with
a strike with an object of forcing Burroughs to terminate
their existing collective-bargaining agreement prior to its
expiration 'date and in violation of Section 8(b)(3) and
8(d) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(3) and
8(d) of the Act, I shall recommend that Respondent be
directed to cease and desist therefrom and take the fol-
lowing affirmative action necessary to effectuate the
policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
The Respondent, Local Union 3, International Broth-
erhood of Electrical Workers, AFL-CIO, its officers,
agents, and representatives, shall
1. Cease and desist from striking or threatening to
strike Burroughs Corporation, in which an object of such
strike is to force or require Burroughs to terminate its
collective-bargaining agreement with Respondent unless
Respondent complies with the requirements of Section
8(d) of the Act.
2. Take the following affirmative action' necessary to
effectuate the policies of the Act.
(a) Post at its business offices and meeting halls, copies
of the attached notice marked "Appendix."5 Copies of
the notice, on forms provided by the Regional Director
for Region 22, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
4 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall, read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "